Ayelet Shachar

In a nutshell

The Birthright Lottery proposes a new way of thinking about the intergenerational transfer of citizenship as a special kind of property inheritance. It emphasizes the significance of citizenship – perhaps the most important goods and opportunity-allocating institution of the modern era. This new framework highlights the uneasy connection between station of birth and membership in distributing rights, opportunities and wealth.

At present, citizenship, with all its blessings, is awarded by the accident of birth. This is entrenched by two legal principles: jus soli (“by birth on the territory”) and jus sanguinis (“by bloodline”). As a result, access to affluent countries in our unequal world is still reserved primarily to those born in a particular territory or to a particular ancestry; those born on the wrong side of the border of security and prosperity are shut out.

This is as surprising as it is disturbing: we typically associate citizenship with democracy, participation, and accountability, making such membership the domain of social and political life where we would least expect to find inherited entitlement living on.

And what a significant inherited entitlement citizenship is: in our world, the global disparities are so great that under the present regimes governed by birthplace or bloodline, “some are born to sweet delight” as William Blake memorably put it, while others (through no fault or responsibility of their own) are “born to endless night.” The reality of our world is that the endless night is more prevalent than the sweet delight. No less than 97 percent of the global population who are assigned citizenship by the lottery of birth either choose, or are forced, to keep it this way.

To overcome this feudal-like system of allotting life chances, some have suggested abolishing borders. But, the latest statistics show that approximately only 1.75 million immigrants are admitted annually by leading OECD countries. The population residing in the world’s poorer or less stable regions amounts to roughly 4.5 billion. This leads to a ratio of 1:1500 between those granted admission and those who may wish it. Even if the world’s wealthy countries declared their borders as open as possible, the problem would not dry up.

We need fresher ideas instead. And this book begins to do just that—first by highlighting the puzzling persistence of birthright in the transmission of membership in the twenty-first century, and by drawing upon real-life legal examples from a number of countries.

By providing a telling account of the historical origins and contemporary effects of birthright membership, I reveal the deep-seated problems of hereditary citizenship. But my analysis does not stop there. The Birthright Lottery also outlines hard-nosed legal remedies that aim to alleviate the most glaring opportunity inequalities that are attached to this system.

It is here that the analogy to property proves most useful. The Birthright Lottery draws upon influential ideas and already-tested institutions developed by economists and political thinkers in order to curtail inheritance. I put these to work as guidelines for alleviating some of the most profound opportunity inequalities that currently attach to the birthright lottery—the extraordinary and unjust system of allotting, by law, membership titles and life chances according to nothing but circumstance of birth.

The wide angle

I began writing this book when I was nine months pregnant. Having just completed a fellowship as a Member of the Institute for Advanced Study in Princeton I returned to Toronto where, before rushing off to the delivery room, I was able to put the final touches to an essay entitled “Children of A Lesser State: Sustaining Global Inequality through Citizenship Laws.” As an immigrant and scholar of citizenship, I could not miss the irony of writing an essay on the birthright transmission of membership while awaiting the birth of my son, who was about to be given the gift of automatic and unconditional membership in our adoptive country, Canada (one of the most prosperous and peaceful societies in the world), simply by virtue of having been born on its soil. Benefiting from a particular set of legal norms has not proven a sufficient reason to accept it without scrutiny, however. Nor did it lead me to abandon the aspiration to reorient the vital academic and political debate over citizenship by drawing the analogy to inherited property. If anything, it provided an added impetus to reveal the manifold ways in which birthright access to citizenship regulates, naturalizes, and legitimizes distinctions—not only between jurisdictions—but also between vastly unequal bequests.

In The Birthright Lottery I articulate the striking conceptual and legal communalities between fixed intergenerational transfers of citizenship and property. Birthright citizenship operates not merely as if it were any other kind of inherited property. Rather, in cascading down the generations, it resembles now-discredited medieval entail property regimes. Moving beyond the standard emphasis on status, rights, and identity, the book creates a space in which to explore membership entitlement in the broader context of today’s urgent debates about global justice and the distribution of opportunity.

Located at the intersection of law, economics, and political philosophy, The Birthright Lottery emphasizes the problem of unburdened intergenerational transfers in the realm of citizenship. It was none other than Alexis de Tocqueville who, in Democracy in America, famously warned about the dangers of inherited property becoming the basis for enduring privilege. A similar cautionary tale is worth telling about birthright citizenship in an unequal world like our own.

If we accept the basic premise that we can no longer avert our eyes from the unfairness of the current regime of unearned privilege in the context of citizenship, what can be done to alleviate it?

Winning a valuable share in the birthright lottery is, after all, largely arbitrary. I therefore argue that this creates an obligation on the windfall recipients in well-off polities to give something back to the rest of the world. This will be a way to legitimize the good fortune and also to bring some of the advantage to those who have not fared so well in the lottery. This insight leads to the development of creative legal remedies that move beyond the mere reliance on blood-and-soil in sculpting the body politic.

Although I fiercely criticize the transfer mechanism of citizenship by birthright, my conclusion is not that we must abolish borders, cheer for a world state, or celebrate the decline of membership bonds. Rather, The Birthright Lottery seeks to find a balance between preserving the enabling qualities of citizenship and improving the well-being of those who remain outside the legal walls surrounding affluent countries.

One such idea explored in the book is placing a “birthright privilege levy” on those who drew the long straw in the membership inheritance game. The aim of such a levy is to ameliorate the most glaring opportunity inequalities that currently attach to this distribution system. This levy is designed to assist in creating a basic safety net of well-being and opportunity to those who remain barred from access to our bounty. It is also about signaling and highlighting disapproval of the current state of affairs, whereby beneficiaries in well-off polities continue to enjoy inherited accumulated wealth and power without restraint.

The incumbent system of perpetual membership inheritance is hard to defend in any circumstances. But when we look at the enormous disparities in well-being, human rights and quality of life in different countries around the world, it becomes ever more difficult to justify. The proposed levy signals this moral outrage. It also holds the promise of providing a secure revenue stream for financing projects to improve the world.

Such levy could equally well, and perhaps even preferably, be fulfilled in the form of public service. As a birthright heir you might be expected to make some use of your privilege to “do good” in the world. Consider just a few illustrative examples: the public service component of the levy can be fulfilled by the creation of the Global Teaching Fellows Program, the Midwives International Volunteer Corps, the Society of Engineers for a Safer World. In each of these examples, citizens-of-privilege are transformed into foot soldiers in the fight to eradicate the staggering consequences of birthright citizenship in today’s world.

Although novel in its application to the intergenerational transfer of citizenship, the notion of leveling opportunity through burdening inheritance is quite familiar in property theory. Many of the giants of social and political thought – from Adam Smith to John Stuart Mill, Ronald Dworkin to Robert Nozick – agree, from different ideological perspectives, that restrictions can (and should) be placed on the perpetual transfer of unearned entitlement.

Taking these constraints on the power to convey property through inheritance as a model for curtailing the presently unburdened transfer of citizenship in affluent polities, the birthright privilege levy offers a tangible legal response to curb these entail-like perpetual transfers.

A close-up

By treating the automatic and perpetual transmission of citizenship by birth as a weak moral link, resembling the property regimes of old that are now deeply discredited and banned, The Birthright Lottery invites legal innovation. This finds expression in the book’s elaboration of an entirely new category of citizenship transfer—jus nexi–citizenship by connection to the country.

Jus nexi would ease the injustice facing individuals who have resided in certain countries for extended periods of time, but do not have a traditional claim to citizenship. Unlike the effects of current legal principles, a genuine connection principle establishes a tie between citizenship and the social fact of membership rather than blind reliance upon the accident of birth. It is a revolutionary new concept that I hope will encourage spirited debate among academics and policy-makers throughout the world.

As a conceptual and legal category, jus nexi bears significant importance for today’s charged debates over immigration in the United States: it establishes that the social fact of membership offers a valid foundation for access to political membership. This new framework highlights the significance of developing ties and identification with the country over time as the basis for bestowing citizenship and its benefits on long-term residents.

I call this genuine connection principle jus nexi because, like jus soli and jus sanguinis, it conveys the core meaning of the method through which political membership is conveyed: by connection, union, linkage. This offers a powerful precedent for turning newcomers into citizens.

In essence, jus nexi relies on property-generated and common-law doctrines emphasizing “rootedness” as the basis of title for those whose lives have become intertwined with the social and economic life of the polity in which they reside. Building further on the analogy to property, I consider the relevance of the generational timeline, as well as the relationship between right and duty, in sketching the main implications of the jus nexi membership criterion for the most significant test-case categories of potential recipients. This is particularly instructive when presented with one of the most difficult dilemmas for liberal democracies: how to deal with noncitizen residents whose initial entry breached the law of the admitting states.

Lastly

We live in a non-ideal world. Without tangible ideas about how we can change our world, change can never occur. The existing system of membership allocation did not fall from the sky. It is the result of human agency. We can alter it, just as we can preserve it. The latter route simply asks us to continue our complicity in preserving an unfair situation. The former clearly requires hard work: breaking old habits of thought and adopting creative reformulations instead.

What I propose is not an easy process. But the stakes are high. We now live in a world torn between those who are doomed to an endless night and those promised a sweet delight due to arbitrary circumstances of station of birth. This is morally wrong, politically unstable, and institutionally unsound: the fossil of a bygone era.

Counterintuitively, The Birthright Lottery demonstrates that by treating birthright citizenship as a special kind of inherited property, we can generate fresh answers to old questions about how best to mediate the demands of security and mobility, justice and citizenship, and especially those dealing with ownership, selection, and allocation.
To draw the analogy to inherited property and to acknowledge birthright entitlement to citizenship as a human construct not impervious to change is to open up the existing system to critical assessment. Once we categorize certain relationships under the rubric of property and inheritance, the classic questions of distributive justice—that is, of who owns what, and on what basis—cannot but follow. This is precisely what is missing in our blind reliance on blood and soil in the assignment of membership entitlement—a connection that is currently both taken for granted and ignored, and ends up obscuring from view the manifold ways in which citizenship operates as a distributor (or denier) of opportunity on a global scale.